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DWI: What You Can Learn from the Mistakes of Others

Why won’t you listen to me?

For years I have been telling people the same things about DWI incidents: “Most clients are convicted because of what they said, not because of what they did,” and “Don’t submit to any tests.” For years those statements have fallen on deaf ears.

I recently finished a jury trial on a DWI case and spent forty minutes talking with the jury that convicted my client. Without exception, they all would have found the client not guilty based on the video of the field sobriety tests. However, once they were given test results the State claimed were scientifically reliable, they could not reconcile the results with what my client claimed to have consumed.

What should you gain from this? Here are the high-points:

If you are stopped at night, the cop is only using the traffic stop to get a look in your vehicle and smell your breath.

Remain silent. Even if you think what you are saying will help you, speak as little as possible. Nothing you can say is going to make the cop let you go. If you give them an amount of alcohol consumed, they will use it against you. In the case of my client, there is no way what the defendant told the officer could have been true. Even if the test was somehow imprecise, it still showed that the defendant had more to drink than he told the officer.

Don’t fool yourself into thinking the cop will let you go. There is an old saying: “You might beat the rap, but you ain’t gonna beat the ride.” Even though officers will testify that they have let people go, in my twenty years of experience, I have only seen or heard of this occurring a handful of times. Concentrate on beating the rap by not giving the police any more evidence than they already have.

Never reveal where you are coming from or where you are going. Statements such as these can be used to make it look as if you are confused or traveling in a direction that is inconsistent with your stated starting point or destination. Also, mentioning that you just came from a bar or are headed to a club probably won’t do you any good at trial.

Never admit to consuming any amount of alcohol. If you must say something, tell them you are not going to answer that question. This is easier if you have already established a pattern of not answering by refusing to tell the officer where you are coming from or where you are going.

Don’t perform any field sobriety tests. In the past, officers testified they had to perform all three tests in accordance with their training, otherwise the tests would not be considered valid. Now, they testify the tests and standards are just guidelines and the results are valid no matter how many mistakes they make when instructing the suspect.

Do not consent to a search. Not of your car, your purse, your pockets, or your phone!

Lock your phone using a combination of both letters and numbers. Do you really want the cops seeing photos of you downing shots with your friends or a video of you chugging a beer? Photos such as this could be used against you in court.

If the police officer asks you why you won’t talk to him or her or perform any field sobriety tests, either say nothing or ask to speak to your attorney and tell them you will have your lawyer explain why. Do not be mean or disrespectful.

Don’t pocket your receipts from bars or clubs. If you want to keep record of what you have spent, take photos of the receipts and email them to yourself. If a cop finds a receipt in your pocket or purse for $100.00 worth of drinks at a bar, it will be collected as evidence and it will likely be used as an exhibit in trial.

In each and every case, an ounce of prevention is worth a pound of cure. If you spend five minutes thinking about what to do if you get stopped, you will perform much better than if you try and wing it on the side of the road.